Theme: Employment

Research while applying for jobs

The terms of your employment contract will capture facts, rights, duties, and obligations that relate to you and your employer. These terms are based on your calibre, your expectations, your employer’s expectations, and industry standards. The terms are described with heavy legal terminology such as “non-compete”, “dispute resolution” etc.

It is important for you to conduct some research to understand what expectations you can have of your employer, if the expectations of your employer are fair, and if your contract is at par with industry standards.

Evaluate the Industry

When you are applying for a job or accepting a job offer, it is important to know industry standards of salaries, pay scales, and work practices. By understanding market trends and having knowledge of best practices, you have higher chances of getting what you rightly deserve from your employer.

Evaluate the Organization

Also, it is advisable to check the prospective organisation’s practices, work environment, treatment of employees, pay scales etc. Conducting such research will help you negotiate your contract better. You can find out such details from networking groups, ex-employees of that workplace, your batchmates from college who work there, colleagues of batchmates, etc.

Evaluate Yourself

Assess your skills and capacity, as it will help you negotiate the terms of your contract better. Your work experience, educational qualifications, relevant degrees/courses/certificate programs etc. will all add value to the position you can ask for as well as your salary.

What are Wages?

Wages refer to all monetary payments in the form of salaries, allowances, etc. that an employer pays to a person for their work or employment, including:

  • Basic Pay
  • Dearness Allowance
  • Retaining Allowance (if any)

There are some monetary payments that are not included in wages:

  • Any legally required bonus not included under the employment agreement. For example, the annual bonus an employer is required to give employees in addition to wages.
  • Amenities like house accommodation, electricity, water, medical attendance, etc. which the Government has excluded from wages
  • Employer’s contributions paid to pension or provident fund, and the resulting interest
  • Conveyance allowance or travelling concession
  • House rent allowance
  • Overtime allowance
  • Commission
  • Payment for special expenses depending upon the nature of the employment. For example, if a glassworker requires a specific tool to carry out their work, this could be a special expense paid for by the employer.
  • Gratuity, retrenchment compensation, or other retirement benefits.

Payment of a legal award or settlement made between parties by the order of the court(( Section 2(y), Code on Wages, 2019.)).

An Advocate’s Duties towards the Court

An Advocate has to maintain certain standards of professional conduct and etiquette in Courts.

Duties in Court

Some of the duties an advocate has in Court include:

  • Behaving in a dignified manner before the Court. Further, whenever there is a proper reason for a serious complaint against a judicial officer, the advocate has a right and duty to submit their grievance to proper authorities.(( Rule 1, Chapter II, Part VI, Bar Council of India Rules, 1975)) For instance, grievances relating to Advocates, the Bar Council of India, Bar Councils of States, and Notary/Government Counsels need to be sent to the Department of Legal Affairs.(( Guidelines of Grievances Received in the Department of Justice, https://doj.gov.in/sites/default/files/GUIDELINES.pdf))
  • Showing respect towards the Court.(( Rule 2, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Not communicating in private to a judge about any case pending before the judge or any other judge. Advocates should not try to influence the Court’s decision about a matter using any illegal or improper means.(( Rule 3, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Appearing in a presentable manner in Court. While in Court, an advocate has to wear appropriate clothing that has been specified to be worn in Court.(( Rule 5, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Not appearing/arguing before a judge, if the judge is related to the advocate(( Rule 6, Chapter II, Part VI, Bar Council of India Rules, 1975)) as:
    • Father/mother
    • Grandfather
    • Son/daughter
    • Grandson
    • Uncle/aunt
    • Brother/sister
    • Nephew/niece
    • First cousin
    • Husband/wife
    • Father-in-law/mother-in-law
    • Son-in-law/daughter-in-law
    • Brother-in-law/sister-in-law
  • Not wearing the advocate’s gown/band in public places other than Courts. Advocates can wear this in public only for ceremonial occasions, and at such places prescribed by the Bar Council of India or the Court.1
  • Not standing as surety for a client.(( Rule 10, Chapter II, Part VI, Bar Council of India Rules, 1975))

Duties while taking on new cases

Some of the duties an advocate has include:

  • Not appearing for or against any establishment if the advocate is a member of the Executive Committee which manages the general affairs of that establishment.(( Rule 8, Chapter II, Part VI, Bar Council of India Rules, 1975)) For example, if an advocate is the Director of a company, they cannot appear for that company in a dispute.
  • Not taking up a case in a matter where the advocate has any financial interest.(( Rule 9, Chapter II, Part VI, Bar Council of India Rules, 1975))

Duties to other lawyers or other clients

An advocate has a duty to the opposing lawyer and clients. An advocate should not directly negotiate with the opposite party, except through the advocate who is representing the opposite party.(( Rule 34, Chapter II, Part VI, Bar Council of India Rules, 1975)) Further, advocates should try their best to carry out the legitimate promises made to the opposite party(( Rule 35, Chapter II, Part VI, Bar Council of India Rules, 1975)) such as appearing on the Court date, drafting petitions on time etc.

Some of the other duties include:

  • Not behaving in an  illegal or improper manner towards the opposing lawyers and parties. Advocates have to also restrict their clients from doing the same.(( Rule 4, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Preventing a client from resorting to unfair practices. Advocates should not allow their client to do anything in relation to the Court or opposing party which the advocates themselves should not do. An advocate has to refuse to represent a client who persists in improper conduct. Advocates have to be dignified in use of their language in correspondence and during arguments in Court. They should not use any improper language during arguments in the Court.(( Rule 4, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • When an advocate has accepted the case of a client, another advocate should not appear for the same party. However, the latter can take consent from the former for appearing. If such consent is not obtained, the advocate will have to ask the Court before being allowed to appear for the client.(( Rule 39, Chapter II, Part VI, Bar Council of India Rules, 1975))
  1. Rule 7, Chapter II, Part VI, Bar Council of India Rules, 1975 [↩]

Important details in an Employment Contract

All contracts start with the description of who you are, your role in the organization and details of your job. This is an example of how the first term of your employment contract would look like:

“XYZ Future Ltd. (“XYZ”), is hiring Abhinav Chandra as “Lead Architect” for a period of 12 months with effect from 15 February, 2019.”

Your Name 

In an employment contract, your name has to be expressly written. The names of the parties involved will be the first and most important detail in your employment contract. In the example given above, it is clear that XYZ is hiring only Abhinav for the job.

Organization’s Name

The official and proper name of the organization has to be in the contract. It should be mentioned that you are being hired by such an organization. In the example given above, it is clearly given that XYZ Future Ltd (“XYZ”) is the organization hiring for the job.

Your Employer’s Name

If you are being hired by an organization, then the name of the party hiring you would be the organization itself. Either the head of the organization or the head of human resources department (HR) will sign your contract on behalf of the organization.

If you are being hired by an individual, your contract will specifically have your employer’s name and only your employer will sign your contract.

For example: “Dr. Raj Sharma, is hiring Abhinav Chandra as “Lead Architect” for a period of 12 months with effect from 15 February, 2019.”

Job Description

The employment contract will have the description of the position you are being hired for and what the terms of your employment are, i.e. what you are expected to do. In the example given above, the job description for Abhinav is “Lead Architect”. His contract will mention that he is being hired for that post and will also include what his work as a lead architect would entail.

Employment Period

Contracts are usually either for a specific period of time or for specific tasks. The employment contract will state the period of time you are being hired for. In the example given above, the period has been specified as 12 months with effect from 15 February, 2019.

In some cases, employers might even add a probation period. This means that once hired, you will be on probation for a specific period of time. After the probation period expires, your employer will assess your work and capabilities and decide whether to confirm your employment or not.

Salary and Other Allowances

The contract has to specify your salary amount in numerals as well as in words. If you do want to modify this amount, make sure you do this before signing the contract as you cannot negotiate your salary amount until the contract expires. Keep in mind that you can ask for a raise in your salary based on the competitive market rates for your job position, if you have previous work experience or if you hold any degrees or certificates in higher education.

Some other allowances that may be mentioned in the contract or in the HR policy are:

  • Relocation allowances, if you relocate to another city for the job provided by the employer.
  • Reimbursement for any work-related expenses.

What is the minimum wage rate?

Employers must pay every employee at least the minimum rate of wages fixed and notified by the concerned Government(( Section 5, Code on Wages, 2019.)), which will fix a minimum wage rate for:

  • Time work (wage rate can be fixed on an hourly, daily or monthly basis).
  • Piece work (for employees engaged in piece work, the Government can fix a minimum wage rate on a time work basis).

If an employee does two or more types of work having different minimum rates of wages, the employer will pay them the appropriate minimum wages for the time spent in each class of work(( Section 11, Code on Wages, 2019.)). For example, consider that the minimum wage for one type of work is Rupees twenty per hour, and Rupees ten per hour for the other type. If the employee spends 2 hours on each type, they will get (20*2) + (10*2) = ₹60 for 4 hours(( Section 11, The Code on Wages, 2019.)).
The concerned Government will review or revise the minimum wage rate usually every five years(( Section 8, Code on Wages, 2019.)).

An Advocate’s Duties to Clients

There are many duties that an advocate has to fulfil towards clients. Some of them include:

Accepting and withdrawing from cases

An advocate should:

  • Accept any case, unless exceptional circumstances exist.(( Rule 11, Chapter II, Part VI, Bar Council of India Rules, 1975)) The Supreme Court has said that a lawyer cannot refuse a brief if a client is willing to pay his fee, and the lawyer is not otherwise engaged.(( A.S. Mohammed Rafi v. State of Tamil Nadu, Criminal Appeal No. 2310 of 2010)) The advocate’s fee will be based on their professional standing and the nature of the case.
  • Not withdraw from a case after accepting it. However, the advocate can withdraw if there is sufficient cause, after giving a reasonable and sufficient notice to the client. If the lawyer withdraws from a case, they have to refund any fee that has not been earned.(( Rule 12, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Not accept or appear in a case for which the advocate might appear as a witness.(( Rule 13, Chapter II, Part VI, Bar Council of India Rules, 1975))

Loyalty to the client

An advocate must:

  • Make full and frank disclosure to the client about the advocate’s connection towards the other parties and any other interest in the case.(( Rule 14, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Uphold the interests of the client by all fair and honorable means.  Advocates should be loyal to this principle and should not let their personal beliefs about a client’s guilt stop them from accepting a case. Regardless of their personal opinion on the guilt of a client, advocates should defend the client.(( Rule 15, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Not work for the conviction of an innocent person. For instance, advocates should not suppress material that could establish the innocence of a person in a criminal case.(( Rule 16, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Only work as per the instruction of the client or the client’s agent.(( Rule 19, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Not act, appear or argue for the opposite party if the advocate has advised, acted, appeared or pleaded for a client at any stage of a lawsuit.(( Rule 33, Chapter II, Part VI, Bar Council of India Rules, 1975))

Upholding interests of the client

Advocates have to make sure that they:

  • Do not specify a fee that is dependent on the result of the case. An advocate should not agree to share the benefits that a client will get from a case.(( Rule 20, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Do not abuse or take advantage of the trust of the client.(( Rule 24, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Keep accounts of the money entrusted to them by the client.(( Rule 25, Chapter II, Part VI, Bar Council of India Rules, 1975))
  • Do not accept a fee less than a fee which can be taxed, if the client is able to pay it.(( Rule 38, Chapter II, Part VI, Bar Council of India Rules, 1975))

Failure to obey any of these duties may qualify for ‘Professional Misconduct’ by the Advocate, and a client can lodge a complaint against the advocate in the appropriate forum.

What if an employee works less or more than the minimum number of hours?

If a daily wage employee works for less than the minimum number of hours because the employer did not give enough work, they still have the right to get wages for a full working day. However, if they failed to work for the  minimum number of hours because they were unwilling to work, they cannot claim this right(( Section 10, Code on Wages, 2019.)).
If an employee works for more than the minimum number of hours, the employer has to pay them for every extra hour that they work, at an overtime rate of at least twice the normal rate of wages(( Section 14, Code on Wages, 2019.)).

Complaining against an Advocate

Complaints against an advocate can be with regard to professional or other misconduct by the advocate.(( Section 35, Advocates Act, 1961)) Actions that qualify as ‘misconduct’ cannot be defined with an exhaustive list. What should be kept in mind is the nobility of the job of an advocate, and the high standard that is expected of advocates by society.(( Noratanmal Chouraria v. MR Murali & Another, Civil Appeal 5476 of 1999)) Instances that are not explicitly mentioned in the law have led to disciplinary actions in the past, such as when an advocate tried to assault a client with a knife.(( Hikmat Ali Khan v. Ishwar Prasad Arya, 1997 (3) SC 131))

Forum to Complain

The State Bar Council is the appropriate forum to lodge a complaint against an advocate.(( Section 35(1), Advocates Act, 1961)) Upon receiving a complaint, or on its own motion, the State Bar Council can refer a case of misconduct to one of its Disciplinary Committees.(( Section 35(1);Section 35 (1A), Advocates Act, 1961))

Further, the disciplinary committee of the Bar Council of India also has the power to withdraw any pending proceeding from the State Bar Council and attend to the matter.(( Section 36(2), Advocates Act, 1961))

If a case has been pending before the State Bar Council for more than a year since the receipt of complaint, the case shall be transferred to the Bar Council of India.(( Section 36B (1), Advocates Act, 1961)) If a person is not satisfied with the decision of the State Bar Council, they have the right to appeal to the Bar Council of India within 60 days of the communication of the decision.(( Section 37(1), Advocates Act, 1961)) If the person is still aggrieved by the decision of the Bar Council of India, they can approach the Supreme Court within 60 days of the communication of the decision.(( Section 38, Advocates Act, 1961))

 Procedure to complain

State Bar Councils accept complaints against an advocate in the form of a petition, duly signed and verified. If you want to find the format, you can approach your State Bar Council which will have a prescribed standard format of complaint, along with the fees. Additionally, formats used can include languages such as English, Hindi or the language of the respective State. (( Rule 1, Chapter 1, Part VII, Bar Council of India Rules, 1975))

After a person submits the complaint, the Disciplinary Committee of the State Bar Council will inquire into the matter.

Punishing an Advocate

When a complaint has been made against an advocate, the Disciplinary Committee of the State Bar Council will give an opportunity for the advocate to defend themself. Further, the Advocate General of the State will also be present during the inquiry. After the inquiry, the Committee will either:

  1. Reprimand the advocate;
  2. Suspend the advocate for the time being;
  3. Remove the advocate’s name from the State roll;
  4. Dismiss the complaint.(( Section 35, Advocates Act, 1961))

Job Offer

When an employer is willing to hire you and gives you a job offer, they must:

  • Communicate to you about the offer
  • Specify the job role and the terms of the job
  • Offer some remuneration/salary/benefits in return for your work

Communication of the Offer

An employer has to communicate the willingness to hire you through a job offer in clear words, either in writing or verbally.

However, it is better to have the offer in writing, as it is easier to prove that the offer was indeed made, if your employer denies it in the future.

Job Role and Terms of Job

  • The offer made to you should be for a specific position or a role. If the offer is unclear, clarify the kind of job role they are interested in hiring you for. It will be hard to get out of the job, once you have taken it and signed the written contract.
  • Make sure that your job role, annual cost-to-company (CTC), benefits, monthly salary etc. are given. You should also clear up any doubts you have about the job details before you accept the offer.

Salary and Other Benefits

The nature of the job will determine your salary. Salaries are usually calculated based on the market rate for that particular job, previous work experience, and your bargaining skills. You can negotiate your salary by clearly communicating the advantage, in the form of your skillset, that you are bringing to the organization, and by utilizing your own market research regarding the salary as per industry rates.

If you are a salaried employee, your total salary will be broken up under different heads such as basic pay, dearness allowance (DA) , Provident Fund deduction, house rent allowance (HRA) etc. You will get your salary after deduction of tax at source. However, if you are not an employee, you will get your full salary amount, which is called a ‘retainership fee’.

After the job offer has been communicated to you, depending on your circumstances, you can always negotiate for additional benefits, a higher salary, or a better position. Your employer may or may not entertain such negotiations, in which case it is up to you to accept or reject the offer.

Timely Response to Offer

Your job offer may specify a time period within which you will have to reply and if you do not respond within the time given, the job offer will lapse. If there is no specific time period mentioned, you should reply to the employer within a reasonable time, either accepting or rejecting the job offer.

When does the employer have to pay a bonus?

An employer should pay an annual minimum bonus to their employee if:

  • Their establishment has at least twenty employees
  • The employer has worked for at least thirty days in an accounting year (starting from 1st April)
  • The employee does not earn more than a specified amount in a month.

However, for the five accounting years immediately following the year in which the employer starts selling goods or giving services, they need to pay the bonus only for years in which they make a profit(( Section 26(6), Code on Wages, 2019.)).

Calculating the bonus

The bonus is eight and one-third percent of the employee’s wages, or Rupees one hundred, whichever is higher. It does not matter whether or not the employer has any allocable surplus during the previous accounting year(( Section 26, Code on Wages, 2019)).

If the allocable surplus is more than the amount of minimum bonus payable to employees, the employer must pay every employee a bonus proportionate to their wages for that accounting year (not more than twenty percent of their wages). However, if an employee has not worked for all the working days in an accounting year, they can proportionately reduce the excess bonus.

The employer should pay the bonus by crediting it in the employee’s bank account within eight months of the accounting year’s end. If the employer requests, the concerned Government can extend this by a maximum of two years.

Employees not eligible for bonus

An employee is not eligible for bonus if they have been dismissed from employment due to:

  • Fraud
  • Violent behaviour at the workplace
  • Theft or property damage
  • Conviction for sexual harassment(( Section 29, The Code on Wages, 2019.)).

Provisions for the bonus do not apply to(( Section 41, Code on Wages, 2019.)):

  • Employees of the Life Insurance Corporation of India;
  • Seamen;
  • Employees registered or listed under any scheme made under the Dock Workers (Regulation of Employment) Act, 1948;
  • Public sector employees;
  • Employees of the Indian Red Cross Society or any other similar institution;
  • Employees of Universities and other educational institutions;
  • Employees of institutions including hospitals, chambers of commerce and not-for-profit social welfare institutions;
  • Employees of the Reserve Bank of India;
  • Employees of inland water transport establishments operating on routes passing through any other country.